Designing and Reforming Courts: Lessons from the Regime Politics View of American Courts
GENDAI SHIHO NO KOKUMINTEKI KIBAN (A DEMOCRATIC FOUNDATION OF MODERN JUDICIARY), Takao Tanase, ed., Nihon Hyoron Sha, 2008
37 Pages Posted: 8 Jan 2009
Date Written: 2008
Abstract
The regime politics perspective on American courts sees judicial power as politically constructed, with politicians creating and designing courts to be their allies. This model is supported by a firm foundation of both logic and fit with the culture and politics of the United States. First, divided politics has supported the development of judicial review and strong courts and, second, an accountability culture has insured that courts are kept politically vulnerable. This delicate balancing act offers valuable lessons but also challenges to legal reformers in Japan and elsewhere. Embedding courts in politics may be sensible in the U.S. but not so prudent elsewhere. Additionally, the various dependencies to which U.S. courts are subject are positive in promoting democratic accountability, but also activate several pathologies that detract from that accountability: courts' association with politics may tarnish their public image, courts may stray from their assigned policy agenda, and elected officials may use courts to confound voters and avoid responsibility.
Keywords: judicial review, regime politics, Supreme Court, judicial impact, judicial behavior
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